Sgt. Jason Freedman and Sgt. Kimba Tieu argued that whether officers knew Heenan was a neighbor was ultimately 'moot' if the officer was threatened.Credit:Nick Berard

A Madison Police Department internal investigation has determined that Officer Steven Heimsness did not violate any department policies or procedures when he shot east-side resident Paul Heenan to death in an early morning confrontation on Nov. 9.

During a press conference Wednesday, Chief Noble Wray said the department plans to return Heimsness to patrol. His return date and whether he will resume his former Willy Street beat have not yet been determined.

Wray released a 37-page internal report on the incident and a state Department of Justice review of the shooting. Last month, Dane County District Attorney Ismael Ozanne announced that Heimsness would not face criminal charges in the case.

Wray and others spent much of Wednesday's press conference emphasizing how little information a police officer may have when deciding whether or not to shoot a suspect. Wray, Lt. Dan Olivas, who wrote the department's report, and department training specialists also repeatedly emphasized that only about 15 seconds passed between when Heimsness arrived at the scene, on the 500 block of South Baldwin Street, and when he fired the three shots that killed Heenan, 30.

"There are some people that, given the nature of this incident, [are] never going to believe that the right thing happened," Wray said, acknowledging the fierce scrutiny the case has attracted from Heenan's friends, family and neighbors.

Jeff Scott Olson, a Madison attorney working with Heenan's family, said he is reviewing the Madison police department report and other documents before making a recommendation to the family about a possible civil suit.

Shortly after the press conference, the Paulie Heenan Memorial Facebook page posted a link to a Facebook event listing that urges Madison residents to protest this Saturday at the City-County Building. The demands in the listing include establishing "a citizens review board for the use of lethal force by law enforcement" and "the end of Officer Heimsness' career in law enforcement." On Wednesday evening, rally organizers promoted the rally in a press release, declaring the department's finding on Heimsness "sets a terrifying and dangerous precedent that has already begun to cultivate a culture of impunity and violence in our city's law enforcement establishment."

A physical confrontation
According to the police report, Heenan was engaged in a physical confrontation with Heimsness and tried to grab the officer's gun. The report also concludes that, given the information Heimsness had from Megan O'Malley -- who made the 911 call to police -- and the police dispatcher, the officer was justified in treating Heenan as a burglary suspect, and therefore potentially dangerous.

"For unknown reasons, Mr. Heenan turned on Officer Heimsness, moved to him quickly, and continued not to follow any verbal commands," Wray said in a prepared statement. "It was Officer Heimsness' perception that Mr. Heenan also attempted to grab his handgun."

According to the police department report, the incident began on Nov. 9 at 2:44 a.m. at the home of Megan and Kevin O'Malley. The couple, who were home with their four children, heard someone come into their house. Kevin O'Malley went downstairs to investigate. Megan O'Malley told police she stayed upstairs and asked her husband whether she should call 911. He answered "no," but Megan told police investigators that she found this response strange and called 911, thinking "what if the person who had come into her home had a gun pointed at her husband" and had ordered him not to call.

It's possible Kevin O'Malley had no idea police were on the way. O'Malley recognized Heenan as a neighbor and realized that Heenan had entered the wrong home after a night of drinking. At the press conference people showed a video that included both a re-enactment of the incident and general questions posed to O'Malley from police.

In the re-enactment, Kevin O'Malley plays the part of Heenan while a detective plays the part of O'Malley. As the two began to struggle outside of O'Malley's house, Kevin O'Malley tells Heenan that he "could have called the cops."

"Oh, you want to get weird?" Heenan responds and pushes O'Malley, causing both to stagger toward Spaight Street. O'Malley notes that this was the moment he looked over his shoulder and noticed Heimsness, whom he had not seen before.

In response to questions from police, O'Malley states that he "didn't feel in complete danger" and didn't anticipate a deadly response from police.

"Help to me was more defusing the situation, helping to reverse the situation, acknowledging that this was a neighbor who was in need of help back to his home, and hoping that my wife or another neighbor could assist with that," he says in the video.

A 'very extraordinary event'
One controversial issue surrounding the investigation is whether officers responding to the scene heard Kevin O'Malley calling "he's a neighbor!" as Heenan turned his attention toward Heimsness and allegedly rushed the officer. Heimsness told investigators that he did not hear this.

Wray and Olivas both said they regarded Kevin O'Malley's account as credible. Olivas said that there could be two explanations for Heimsness not hearing O'Malley's cries: Heimsness could not hear O'Malley over his own commands to Heenan, or the stress of the situation caused Heimsness to experience "auditory exclusion."

The report says the other responding officer, Stacy Troumbly, "also has no recollection of hearing any yelling other than Heimsness', and it is entirely possible that Heimsness' voice was drowning out anything O'Malley was saying." Troumbly told police investigators that, upon seeing Heimsness and Heenan struggling and hearing Heimsness ordering Heenan to "get back" and "stop," she sprinted toward the two and drew her Taser gun.

Sgt. Jason Freedman and Sgt. Kimba Tieu, firearms specialists who performed a demonstration of "deadly force" decisions at the press conference, argued that whether officers knew Heenan was a neighbor was ultimately "moot" if the officer was threatened.

Freedman and Tieu framed Heimsness' killing of Heenan as a "tactical" decision that the officer had to make without a lot of information to go on. Asked why Heimsness drew his gun instead of the Taser he was carrying, Tieu said "to start at a lower level of force where we cannot respond effectively puts the officer at a disadvantage."

If a suspect draws a gun on an officer, the officer may not have time to drop his Taser and pull his own gun before the suspect fires, Freedman and Tieu explained. Heenan was unarmed, but Tieu and Freedman argued that Heimsness had no way of knowing that for sure.

Even if a suspect is unarmed, they added, there is always the danger the suspect could take the officer's gun and use it against him.

When asked why Heimsness fired into Heenan's upper body instead of shooting at his legs or elsewhere to stop and wound him, Freedman and Tieu said that would run counter to most officers' training. Officers want to make sure they hit a subject and thus aim for the upper body and central nervous system, as those targets are easier to hit than limbs, especially when a subject is moving unpredictably.

Wray said that previous incidents in which Heimsness was accused of misconduct "do not come into play," because the allegations were "not sustained." That does not mean he was "exonerated." Sgt. Phil Moore of the police department's professional standards division says it means that internal police investigators may have some reason to believe an officer behaved inappropriately, but not enough "to say more than 50% percent."

Heimsness was disciplined after a 2001 incident in which he fired his gun at a vehicle fleeing the Lake Street parking ramp. In a 2006 incident, a Madison police investigation ruled as "not sustained" allegations that Heimsness used excessive force against a suspect he arrested at State Street Brats.

Heimsness has declined to comment to the media, but interviews recounted in the report suggest the event was a surprise to the 15-year police veteran.

"I don't ever recall anyone ever physically attacking me after I've placed them at gunpoint, ever, in 15 years, so this was a very unusual situation and when combining all those things together, I believed he was going to try to take my gun and kill me," he told department investigators. "Well, it was a very extraordinary event."